First woman prosecuted on new felony drug charge

She told a police officer it helped her sleep at night and boosted her appetite during her pregnancy. But Friday, she became the first woman in Texas to be prosecuted on a felony charge of delivery of marijuana to a minor - via her womb.

Baker, 35, appeared before 47th District Judge Hal Miner on Friday and pleaded guilty to the charge, a second-degree felony punishable by two to 20 years in prison.

Miner sentenced her to five years of deferred adjudication and ordered her to pay a $1,000 fine, take parenting classes and serve 250 hours of community service.

Baker's plea under terms of deferred adjudication means she will not have a conviction if she successfully completes community supervision.

Assistant 47th District Attorney Richard Martindale said Baker gave birth to twins last year at Northwest Texas Hospital and both turned up positive for the presence of marijuana after they were born. Baker later admitted smoking marijuana in her back yard during her pregnancy after an investigator questioned her, Martindale said.

Martindale said the case is the first such prosecution in Texas.

During Friday's hearing, Miner told Baker she could be ordered to serve the full prison term if she does not complete community supervision.

Baker, visibly upset during the hearing, told Miner she did not want to appeal the case.

Her attorney, Tom Lesly, said his client just wants to get on with her life.

"The constitutionality concerns us all. Let there be no doubt about it," he said of the case. "The poor woman, she has no criminal record. ... She was not interested in a trial. She was not interested in going to the judge. She just wants it behind her. I just hate to see people like her caught up in this."

Lesly said prosecutors should consider other factors and differentiate between drugs like marijuana and harsher drugs like cocaine when they prosecute such cases.

Another Amarillo woman, Tracy Yolanda Ward, faces a similar prosecution for delivery of a controlled substance - crack cocaine - to her unborn son.

"I certainly think it would be far more appropriate to look at what the drug is, the interaction, the health of the children," Lesly said. "Where will this stop? If a woman chose to take a vitamin, if she drinks coffee, if she has a mixed drink, if she smokes .... They are arguing illegal drugs, but it's a very troubling issue."

The case was prosecuted under 47th District Attorney Rebecca King's interpretation of a new state law redefining the term "individual."

The law defines an individual as "a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth."

In a Sept. 22 letter to Potter County doctors, King said the new law, combined with other Texas statutes, dictates that health-care providers notify authorities when a pregnant woman takes illegal drugs.

But a spokesman for Rep. Ray Allen, a Grand Prairie Republican who sponsored the bill, has disputed King's interpretation of the new law and said an exception in the state's penal code says the law can't be used against a mother who is taking drugs.